Legal Systems: Rule of Law

Lord Plant of Highfield Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Plant of Highfield (Lab)]

My Lords, I should like to add my thanks to the noble and learned Lord, Lord Woolf, for initiating this debate. Perhaps I may draw attention to my interests as set out in the register.

I want to devote all my remarks to the idea of the rule of law, because what exactly that might mean is not without controversy. There is a fairly straightforward idea of the rule of law, which I think is highly inadequate. This view is that the law is what a duly constituted sovereign says and that it emanates from a recognised sovereign power. The rule of law then is a matter of complying with those laws issued by that sovereign. This positivistic view is still much debated and discussed, but there are two fairly major objections to just seeing the law as validated by its source.

The first objection is that it is perfectly possible to have a duly constituted sovereign power that has a highly authoritarian set of laws. I do not want to prejudge it too much, but Egypt might be a coming example of this. There is no doubt that General al-Sisi was duly elected and there may well be a raft of highly oppressive laws coming down the track. On this positivistic view, however, they are still the law; complying with the rule of law is complying with those laws whether you like it or not.

The second objection to the positivistic view of the rule of law is that it is highly relativistic. For example, we are facing in this House the issue of the role of judicial review. One might say: in that jurisdiction with its laws, there is a place for judicial review and that is fine; and in this jurisdiction with its laws, there is not a very big place—or a place at all—for judicial review. These are perfectly equal. We have no reason for preferring one to the other. They are both fine within their own doctrine of authority, but both of these objections would lessen the attraction of the source view or the positivist view of law to those who are keen on the idea of the rule of law.

We need more—or more subtle—criteria for thinking about the rule of law. One place where this can be found, up to a point at least, is in Lon Fuller’s famous book The Morality of Law in which he lists a whole range of criteria that must be satisfied before the rule of law can be said to exist. For example, the law has to be public and not secret; the law should not be retrospective; there can be no strict obligations imposed on citizens without the force of law; all citizens are to be subject to the law in an equal way; we have to listen to both sides of a legal dispute; laws are to be mutually non-contradictory; they should be constant through time; and the official actions of government and its agencies are to be congruent with the law. This gives us a bit more to chew on than just the positivist view. However, critics have said—I think that there is a lot of force in this—that this does not take us very far, because these are not really moral criteria for thinking about the rule of law. They are just efficiency conditions for any legal system. So any legal system that is going to work will have to include most of these criteria that I have just read out. Therefore, this is not what Fuller calls it, namely the inner morality of law, but rather it is just a set of efficiency criteria for the operation of a legal system.

What we need is a view of the rule of law that pays attention to that, because they are important efficiency conditions, but we need to go beyond that to the place where the noble and learned Lord, Lord Woolf, was in his speech—namely, to think about the broader view of the role of basic moral principles in the law, as exemplified, for example, in the rights that are protected under the European convention, the Human Rights Act and so forth. We have to look at outcomes, not just processes. So much talk about the rule of law is about either the source of law or the Fuller type of criteria. We need to look at what kind of society we want the law to foster, which will include these various rights and protections for individuals, including the justice and fairness of the noble and learned Lord, Lord Woolf.

To finish on a slightly less heavy note, I was once in a committee in your Lordships’ House when someone got rather muddled up and came up with a wonderful comment, which I shall leave your Lordships with. This person said that if you are thinking about how the British legal system has impacted on the world, it has turned warlords into law lords—and I think there is something in that.